1. Whenever we see our national emblem our heart fills with pride and glory. Every nation has an emblem to symbolize itself with a glorious object and such emblem is termed as the State Emblem of that country. State emblem signifies a symbolic object as a distinctive badge of a nation, which creates a visual representation of that country. Our country also has a state emblem which has been adopted on 26thJanuary, 1950 from the Lion Capital of Ashoka(250 BCE), which is preserved in the Sarnath Museum at Sarnath,Varanasi.

The Lion Capital has four lions mounted back to back on a circular abacus. The frieze of the abacus is adorned with sculptures in high relief of an elephant, a galloping horse, a bull and a lion separated by intervening Dharma Chakras. The abacus rests on a bell-shaped lotus.

The profile of the Lion Capital showing three lions mounted on the abacus with a Dharma Chakra in the centre, a bull on the right and a galloping horse on the left, and outlines of Dharma Chakras on the extreme right and left has been adopted as the State Emblem of India. The bell-shaped lotus has been omitted. The motto Satyameva Jayate (Truth alone triumphs) written in Devanagari script below the profile of the Lion Capital is part of the State Emblem of India and the said motto has been taken from Mundaka Upanishad. The Ashoka Chakra (wheel) on its base features in the centre of the national flag of India.

This State Emblem appears on designated places and buildings, all communications on behalf of State, Indian currency, Indian Passports, all Identification cards issued by the State (such as Aadhaar Card, PAN card and Voter Identity Card etc.), official seal of the Government and on all State notifications etc. The use of State Emblem of the India is regulated and restricted under State Emblem of India (Prohibition of Improper Use) Act, 2005and the State Emblem of India (Regulation of Use) Rules, 2007.

2. The State Emblem of India (Prohibition of Improper Use) Act, 2005, is an Act passed by the Parliament to prohibit the improper use of State Emblem of India for professional and commercial purpose and for matters connected therewith or incidental thereto.

This act extends to the whole of India, and also applies to citizens of India outside India. The necessity was felt by the legislature to enact a new law specifically for the use of State Emblem, though, there were many legislations in force to regulate the use of state emblem upto some extent such as ‘Emblems and Names (Prevention of Improper use) Act, 1950,Trade Marks Act, Patents and Designs Act, Merchandise Marks Act, and Companies Act, etc.

However, said acts were found to be in-adequate to prevent the unauthorized use of the State Emblem. There were number of incidents came into knowledge of the government regarding misuse/abuse of the state emblem by un-authorized organizations/persons, hence, the legislation passed the above said act wherein theimproper use of the State Emblem, in any form, has been prohibited under the above act and said improper use includes:

1. using the state or any colourable imitation thereof in any manner which tends to create an impression that it relates to the Government or that it is an official document of the Central Government, or as the case may be, the State Government, without the previous permission of the Central Government.
2. using the state emblem for the purpose of any trade, business, calling or profession or in the title of any patent, or in any trade mark or design, except in such cases and under such conditions as may be prescribed in the Act.
3. registering a trade mark or design which bears the emblem, (d) granting patent in respect of an invention which bears a title containing the emblem.

Any person who uses improperly the emblem in any aforesaid form shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to five thousand rupees, or with both, or if having been previously convicted of an offence under this section, is again convicted of any such offence, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which shall not be less than six months, which may extend to two years and with fine which may extend to five thousand rupees.

The above act provides that:
No prosecution for any offence punishable under this Act shall be instituted, except with the previous sanction of the Central Government or of any officer authorized in this behalf by general or special order of the Central Government. However, in a reply to an application under RTI Act, the Government has admitted that it has not formed any authority to sanction prosecution for violation under the State Emblem of India (SEI) Act, 2005 as prescribed by the law itself.

The Ministry of Home Affairs (MHA) which deliberated with the Law Ministry to respond to an RTI query for details regarding prosecution authority for SEI Act, has said no such authorized body has been formed in the ministry. In another RTI application, the applicant sought information regarding the procedure for filing a complaint against Govt. Counsel in Supreme Court, for unauthorized use of the National Emblem and matters connected therewith.

The Ministry of Home Affairs through Dy. Secretary to the Govt. of India and CPIO, informed the applicant that:
theState Emblem of India is governed by the State Emblem of India (Prohibition of Improper use) Act, 2005 and the State Emblem of India (Regulation of Use) Rules, 2007.

A complaint of unauthorized use of the State Emblem by any person can be made at the nearest police station. The police authorities, who are charged with enforcement of law and order in their respective territorial jurisdiction, are responsible for taking action under the law for violation of the State Emblem of India (Prohibition of Improper Use) Act, 2005.

 Aggrieved with the decision of the CPIO, the appellant filed a first appeal before the First Appellate Authority (FAA) who also upheld the decision of the CPIO. The appellant filed a second appeal before the CIC and the applicant submitted that as per the advice of the MHA he filed a complaint before the nearest Police Station for un-authorized use of the National Emblem.

The Police however, have refused to lodge an FIR under the State Emblem of India (Prohibition of Improper use) Act, 2005, on the ground that the offence was non cognizable and he was advised by the police to approach the concerned Court in this regard. The appellant further submitted that for filing the complaint before the concerned Court, he needs the sanction of prosecution from the M/o Home Affairs, under the provisions of the State Emblem of India (Prohibition of Improper use) Act,2005.

However, when the applicant/appellant sought sanction of prosecution, from MHA, under the State Emblem of India (Prohibition of Improper use) Act, 2005, the MHA intimated that they will again re-examine the matter and appropriate legal advice to reach a logical conclusion in the matter. The Commission directed the MHA to revisit the matter and provide correct information to the appellant. Thus, the ambiguity regarding prosecution sanction remained unsolved.

3.The State Emblem of India (Regulation of Use) Rules, 2007framed certain rules to regulate the use of state emblem, which are summarized below:

1. Use in the official seal of the government:
   (i) The design of the Official Seal shall have the emblem enclosed in an oval or round frame.
   (ii) The name of the Ministry or the office shall appear between the inner and outer rims of the frame.
   (iii) The abbreviated form of the name of a Ministry or the office may be inscribed where it is not possible to accommodate the name in full.
   (iv) A State Government may adopt the emblem as the official Emblem of the State or the Union territory, as the case may be, without obtaining the approval of the Central Government.
   (v) Where a State Government proposes to incorporate the emblem or any part thereof in the Emblem of that State or Union territory, as the case may be, it shall do so after obtaining the prior approval of the Central Government and shall get the design and layout approved by the Central Government: Provided that where a State Government has already incorporated the emblem or part thereof in the Emblem of that State or Union territory, as the case may be, prior to the coming into force of these rules, it may, subject to the other provisions of these rules, continue to use the emblem.
    
2. The emblem, when printed or embossed on official or demi - official stationery, shall appear prominently on the middle of the top of such stationery.
    
3. The emblem should be used on the authorized vehicles as follows:
   (i) cars of Rashtrapati Bhawan, when the following dignitaries or their spouses are travelling by such vehicles:
   (a) President,
   (b) visiting Heads of foreign States,
   (c) visiting Vice-Presidents of foreign State or dignitaries of equivalent status,
   (d) visiting heads of foreign Governments or dignitaries of equivalent status like Crown Prince or Princess of a foreign State,
   (e) the spare car following the car of the President;
   (ii) car of Vice-President when he or his spouse is travelling by such vehicle;
   (iii) cars of Raj Bhawan and Raj Niwas, if the emblem is adopted by, or incorporated in the Emblem of, that State or the Union territory, when the following dignitaries or their spouses are travelling by such vehicles within the State or the Union territory concerned;
   (a) President,
   (b) Vice-President,
   (c) Governor of the State,
   (d) Lieutenant Governor of the Union territory,
   (e) Visiting Heads of foreign States,
   (f) Visiting Vice-Presidents of foreign States or dignitaries of equivalent status,
   (g) Visiting Heads of foreign Governments or dignitaries of equivalent status;
   (iv) cars and other means of transport used by the Heads of India's Diplomatic Missions in the countries of their accreditation;
   (v) cars and other means of transport used by the Heads of India's Counsellor posts abroad in the countries of their accreditation;
   (vi) cars maintained by the Protocol Division of the Ministry of External Affairs when in use for duty with the foreign dignitaries of the rank of Cabinet Ministers and above visiting India, and Ambassadors accredited to India on ceremonial occasions.
   (vii) The following vehicles are authorized to display the Ashoka Chakra (which is Part of the Emblem) on Triangular Metal Plaques on their Cars
   (a) cars of the Prime Minister and Ministers of the Union, Speaker and Deputy Speaker of the Lok Sabha, Deputy Chairperson of the Rajya Sabha when travelling anywhere in India;
   (b) cars of Chief Justice of India and Judges of the Supreme Court, and Chief Justices and Judges of High Courts within their respective territories;
   (c) cars of Cabinet Ministers in States, Ministers of States in States, Speakers and Deputy Speakers of the State Legislative Assemblies, Chairmen and Deputy Chairmen of Councils of States, Ministers (other than Deputy Ministers) of Union territories with Legislature, and Speakers and Deputy Speakers of Legislative Assemblies in Union territories, when they are travelling within their State or Union territory, as the case may be (if the emblem is adopted by, or is incorporated in the Emblem of, the State or the Union territory).
    
4. The State Emblem may be displayed on important public buildings including:
   (i) The Rashtrapati Bhawan, Parliament House, Supreme Court and Central Secretariat buildings.
   (ii) Raj Bhawan or Raj Niwas and State Legislature, High Courts and Secretariat buildings of the States or the Union territories that have adopted the emblem or have incorporated the emblem in the Emblem of the State or the Union territory.
   (iii) India's Diplomatic Mission abroad and the heads of Missions may display the emblem at their residences in the countries of their accreditation.
   (iv) The buildings occupied by India 's Consulates abroad at the entrance doors thereof and on the residences of Heads of consular posts in the countries of their accreditation.
    
5. Subject to the provisions of these rules, the emblem may be used for other purposes as are specified in Schedule III of the Act.
    
6. The following constitutional authorities / dignitaries are authorized to use the state emblem:
   (i) President, Vice-President, Prime Minister and a Union Minister;
   (ii) Governors, Lieutenant Governors, Administrators, if the emblem is adopted by, or incorporated in the Emblem of, that State or the Union territory, as the case may be;
   (iii) Office and officers of the Parliament of India;
   (iv) Judges and office and officers of the Judiciary;
   (v) Office and officers of the Planning Commission;
   (vi) Chief Election Commissioner of India, Election Commissioners and the office and officers of the Election Commission of India;
   (vii) Comptroller and Auditor-General of India, the office and officers of the Comptroller and Auditor-General of India;
   (viii) Chairperson and Members of the Union Public Service Commission and the office and officers of the Union Public Service Commission;
   (ix) Ministries, Departments and offices of the Central Government and their officers;
   (x) Diplomatic Missions abroad and their officers;
   (xi) Chief Ministers and Ministers of the States and the Union territories, if the emblem is adopted by, or incorporated in the Emblem of, that State or the Union territory;
   (xii) Members of Parliament and members of State or the Union territory Legislative Assemblies or Councils, as the case may be;
   (xiii) Ministries, Departments and offices of the State and the Union territory Governments and their officers, if the emblem is adopted by, or incorporated in the Emblem of, that State or the Union territory;
   (xiv) Office and officers of the State or the Union territory Legislative Assemblies or Councils, if the emblem is adopted by, or incorporated in the Emblem of, that State or the Union territory;
   (xv) Commissions and authorities, constituted or established by an Act of Parliament or set-up by the Central Government; (xvi) Commissions and authorities constituted or established by an Act of the State Legislature or set-up by the State Government, if the emblem is adopted by, or incorporated in the Emblem of, that State or the Union territory;

4. Thus, the statute makes it very clear that who can use the state emblem and when. The above Act further imposes certain restrictions on the use of the emblem, as:

1. No person (including former functionaries of the Government, like, former Ministers, former Members of Parliament, former Members of Legislative Assemblies, former judges and retired Government officials), other than those authorized under these rules, shall use the emblem in any manner.
    
2. No Commission or Committee, Public Sector Undertaking, Bank, Municipal Council, Panchayat Raj Institution, Parishad, non- government organisation, University, other than those authorised under these rules, shall use the emblem in any manner.
    
3. No association or body of persons, whether incorporated or not, shall use the emblem on their letter-heads, brochures, seats, crests, badges, house flags or for any other purpose in any manner.
    
4. The stationery, including letter heads, visiting cards and greeting cards, with emblem printed or embossed on it, shall not bear words, like, Advocate, Editor, Chartered Accountant with the name of the person authorised to use the emblem under these rules on the stationery.
    
5. No person shall use or continue to use the emblem or any colourable imitation thereof for the purpose of any trade, business, calling or profession or in the title of any patent, or in any trade mark or design: Provided that a person or a group of persons, association, body, corporate, may use the emblem in connection with an event organised by it or a publication brought out jointly with a Ministry or Department of the Central or State Government, with the prior approval of the Central Government.

5. In Chandra Mohan Das Versus Union of India and others [(W.P.(C) NO. 703/2017) reported in (2018) 04 GAU CK 0014 ], a certificate was issued by the Secretary of Mukhtiar Gaon Panchayat, certifying that Chandra Mohan Das (i.e. the petitioner) was the son of Late Krista Mohan Das and Montora Das.

However, the Hon'ble Court observed that the said certificate cannot be accepted as a valid and admissible piece of evidence for more than one reason. Firstly, under Rule-10 (2) and Schedule-1 of the State Emblem of India (Regulation of Use) Rules, 2007, framed under the State Emblem of India (Prohibition of Improper Use) Act, 2005, Panchayati Raj Institutions, such as Gaon Panchayats, are not authorized to emboss the State Emblem of India in certificates or official correspondence made by such institutions.

But in certificate, the State Emblem of India is embossed right at the top middle portion of the certificate, besides two round seals also containing the State Emblem. Such unauthorized use of the State Emblem of India has rendered this certificate inadmissible in evidence. Thus, it is clear that the local authorities though working for the government/State cannot use the state emblem without prior authorization from the State.

6. A petition (bearing no. CRL.P 4270/2016) has been filed before the Hon'ble High Court of Karnataka, under Section 482 of Cr.P.C., seeking to set- aside the order passed by the Additional Chief Metropolitan Magistrate, Bengaluru, taking cognizance and issuance of process to the petitioner for the alleged offence punishable under section 7(1)of the State Emblem of India (Prohibition of Improper Use) Act 2005 in a private complaint under Section 200 of Cr.P.C. wherein it was alleged that the petitioner was using the official emblem of the Air Force and was unnecessarily harassing the complainant and her family members by lodging false complaints to various authorities.

It was alleged by the petitioner that the learned Magistrate has entertained the complaint against the petitioner without the previous sanction as required under Section 8 of the Act. Hence the act of taking cognizance and the consequent proceedings are illegal and void ab-initio.

The respondent contended that the petitioner having been retired from service, no such prior permission is necessary for prosecuting the petitioner. The Hon'ble Court observed that the Emblems and Names (Prevention of Improper Use) Act, 1950has nothing to do with the performance of the official acts.

The offences under this Act are not restricted to public servants. The Act is applicable to all and sundry and as applicable to the whole of India. Section 8 of the Act, 2005 specifically provides that no prosecution for any offence punishable under this Act shall be instituted, except with the previous sanction of the Central Government or of any officer authorized in this behalf by general or special order of the Central Government.

In view of the above provisions the prior sanction of the Central Government is a sine qua non for institution of prosecution of the petitioner for the alleged offence under section 7 of the Act. As the prosecution has been initiated without compliance of the said mandatory requirement, the cognizance taken by the learned Magistrate and the consequent proceedings therefore cannot be sustained in the eye of law and as a result, the petition deserves to be allowed.

7. In a Writ Petition (W.P.(C) No. 10877/2017) titled as ‘Nyayabhoomi Versus Govt. of NCT of Delhi and others' filed before Hon'ble High Court of Delhi observed that In exercise of powers under Section 11 of the Act of 2005, the Central Government has framed the State Emblem of India (Regulation of Use) Rules, 2007.

With regard to the subject matter of writ petition, it is necessary to refer to Rule 7 of the State Emblem of India (Regulation of Use) Rules, 2007 (Rules of 2007 hereafter) which deals with the display of State emblem on vehicles which shall be restricted to the authorities as specified in the Schedule I. So far as constitutional authorities and other dignitaries are concerned, the Schedule II of the said Rules of 2007 sets out the details of the which may display the emblem on their cars.

Rule 10 of the State Emblem of India (Regulation of Use) Rules, 2007 restricts the use of the State emblem to only those authorized by the Rules and as detailed in the Schedule II of Rule 7. So far as the vehicles of the Rashtrapati Bhawan, Vice President, Raj Bhawan and Raj Niwas; and Protocol division of the Ministry of External Affairs are concerned, Part I of Schedule II of the State Emblem of India (Regulation of Use) Rules, 2007 regulates the use of State Emblem.

8. It can be summarized that the State Emblem of our country dignifies the glorification of the nation through symbolic representation and it becomes imperative on the part of all citizen to respect the same to protect the national honour, thus, the state emblem may be used on the occasions and places as authorized under the provisions of the State Emblem of the India (Prevention of Improper Use) Act, 2005 and rules framed there under.

However, it is very difficult for the police to register an FIR and investigate the matter in case of abuse/ improper use of the state emblem, due to mandatory condition of prior sanction of the Central Government to prosecute the offender and the punishment as provided in the said act makes the offence of abusing/improperly using the state emblem as ‘Non-cognizable offence' thus, a police officer cannot take action to investigate the matter without prior sanction and it is not easily possible for an ordinary man to approach the Ministry of Home Affairs, now and then to grant the sanction to prosecute the offender, which can increase the improper use of the state emblem.

Thus, the following may be suggested to amend the above act for its efficient and effective implementation:

1. The punishment for offences of improper use/abuse of State Emblem may be extended upto three years or more, in order to classify the offence as ‘Cognizable' one so that the Police can effectively deal with the criminal acts of insulting the national honour through improper use of the state emblem; and
    
2. A Nodal agency/authority may be constituted under the Ministry of Home Affairs to directly monitor the cases of improper use of the state emblem and grant prosecution sanction expediently, as and when situation warrants so. The said authority may also look into all the criminal acts of insulting the national honour.

Thus, State Emblem of our country embodies the state of pride, glory and respect to the ethos, culture, unity and integrity of the nation. All citizen must inculcate a moral duty towards our nation to respect the state emblem and avoid the improper use of the state emblem, without even waiting an action from the government under the State Emblem of India (Prevention of Improper Use) Act, as the emblem represents whole country including its citizens.

Written By : Kapil Kishor Kaushik, Advocate